Obamacare at SCOTUS

Justice Roberts Shines—David Frum

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A lawyer friend writes:

1. John Roberts is the smartest person on the Supreme Court … and it isn't close. Jeffrey Toobin has called Roberts the Court's best writer since Robert Jackson … he is also the court's most lucid thinker and most persuasive advocate. At every stage in the argument today, it was Roberts who identified and articulated the weaknesses in both sides arguments and it was Roberts who made sure that the lawyers commented on those weaknesses. He and Justice Kagan were operating at a totally different level than the rest of their colleagues today.

2. Elana Kagan is the second smartest person on the Supreme Court. With Justice Stevens gone, the left lost its craftiest and most thoughtful member. Justice Kagan appears to be more than capable of filling the void he left open. She is already a star and is clearly Robert's most worthy adversary. I continue to be unbelievably impressed by her moxy on the bench. She is thoughtful, listens, and when she speaks, she always says something worth hearing.

3. Barack Obama regrets selecting Sona Sotomayor right now. True to Lawrence Tribe's predictions, Justice Sotomayor (while undoubtedly bright) is truly not nearly as smart as she thinks she is. I cannot overemphasize how unimpressed I was by her over the course of two hours. She did more with her "questions" to bolster Clement's arguments (every time she asked a question, he would absolutely knock it out of the park) than any conservative member of the court could have done asking intentionally friendly questions. You could almost hear Kagan, Breyer and Ginsburg cringing every time she spoke. Breyer and Ginsburg actually began to correct her questions quickly after she asked them so that Clement wouldn't have too much fun with them. She talked a lot and said very little. I found her to be as unimpressive as Roberts and Kagan were impressive.

4. I'm fairly convinced that John Roberts will write this opinion irrespective of which way he turns. While Scalia's tone surprised me today (given his Raich concurrence I thought he would actually be a good candidate to write the opinion upholding the mandate), Roberts drove the conversation all day. His vote will turn on (and the key issue in the case, which, if her questions are any indication, Justice Sotomayor simply could not wrap her mind around) his conclusion regarding the government's theory that everyone is, in effect, already in the healthcare market. In other words, the argument goes that we are in the health care market the minute we are born and its just merely a matter of timing. If the Chief accept this, and I did not get the impression that he was satisfied with any responses to that argument (he kept asking the question in different ways throughout the argument) then the government is not forcing us to enter any market at all and it is within the commerce power in regulating that market. I anticipate that Roberts can talk Alito into joining him whichever way he turns, so I expect this to be 6-3. The question if which side will get 6.

5. Tom Goldstein (who worked with Tribe and Boies in Bush v. Gore…so not the right's most prominent advocate) called Paul Clement's argument "the best argument of any kind I have ever seen." I think this law (crappy as I think it is) is Constitutional but Tom Goldstein was absolutely right. Clement backs some conservative causes that make me a bit uncomfortable, but he was nothing short of spectacular today. He probably scored more points off adverse questions by liberal Justices than he did off the easy stuff. It was truly a masterful performance on every level. If the conservatives prevail, Paul Clement will have had quite a bit to do with it … which is rather remarkable since usually lawyers can only screw cases up.